Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. I have been interested in the question of when evidence is "material" for quite some time. Indeed, the first evidence article that I ever wrote addressed the circuit split over whether and when inadmissible evidence is "material" and can form the basis for a Brady violation (seehere). And, I've taken up the issue a few times on this blog, writing about cases in which courts decided whether the following evidence was "material": (1) evidence of a jailhouse snitch's prior convictions (No) (here); (2) evidence that an eyewitness was legally blind (No, but then Yes) (here and here); (3) evidence that a confidential informant had been giving false reports (Yes) (here); and (4) inadmissible evidence (as noted, courts are split (here).

The Supreme Court has never articulated the range of sanctions that should be imposed when the government fails to comply with the Brady disclosure duty. In practice, when Brady violations are discovered after trial, the usual remedy is a new trial in which the previously withheld evidence can be introduced by the defense. When Brady violations are discovered pretrial, the court usually orders the government to disclose the suppressed evidence and, if necessary, grants a continuance in order to give the defense the opportunity to make effective use of the exculpatory information.

So, what's the problem with these remedies? Professor Jones contends that

Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated. Under this scheme, the consequences of noncompliance with Brady are identical to the consequences of compliance--disclosure of favorable evidence to the defense. Therefore, simply mandating compelled disclosure as a Brady sanction is not a potent deterrent to prosecutors who would purposely withhold favorable evidence.

Likewise, granting a continuance of the trial date in response to a Brady violation is not an effective sanction alternative because of the wide range of collateral consequences. First, defendants that have been detained pretrial are forced to endure a more prolonged loss of liberty if a continuance of the trial date is necessitated by the government's failure to comply with its Brady disclosure duty. In jurisdictions with crowded court dockets, the length of the delay could extend for several months. Moreover, following the disclosure of the previously suppressed Brady evidence, the defense will be required to spend additional time, money, and effort to make effective use of the new information (locating witnesses, hiring experts, seeking forensic testing, pursuing investigative leads). This, in turn, leads to the needless waste of judicial resources when courts must respond to additional motions and conduct evidentiary hearings stemming from the belated disclosure of exculpatory evidence. Consequently, to create a strong disincentive for prosecutors to suppress Brady evidence, and to prevent this needless waste of time and resources in the criminal justice system, courts must do more than grant a continuance of the trial date to redress Brady misconduct.

So, what's the solution? Well, one solution is the other end of the spectrum: dismissal. But, as Professor Jones notes, "dismissal is a 'disfavored' or 'drastic' sanction that is rarely imposed," and "[a]lthough legal scholars and jurists have proposed Brady reforms that strongly encourage the expanded use of dismissal as a sanction for intentional violations, those reforms have not been adopted by state and federal courts." Therefore, she argues for two possible remedies/penalties:

The "Brady Instruction"

Professor Jones first argues that courts could respond to Bradyviolations by giving Brady instructions

closely akin to adverse inference instructions, also known as "missing evidence" or "spoliation" instructions. Those specially crafted instructions are traditionally used by courts to address evidentiary imbalances created when discoverable or admissible evidence is suspiciously lost or inexplicably destroyed while in the exclusive possession of an adverse party. Commonly, adverse inference instructions inform jurors that they are permitted to infer that if the absent evidence had been produced at trial, it would have been damaging to the party responsible for its loss.

Indeed, as Professor Jones notes, in the civil context, Federal Rule of Civil Procedure 37(c)(1) specifically authorizes courts to inform jurors of parties' failures to provide information or identify a witness as required by the discovery rules. Moreover, she points out that "[w]hile adverse inference instructions are most commonly given when evidence has been permanently lost, trial judges have infrequently employed the instructions to redress Brady misconduct."

So, what might a Bradyinstruction look like? According to Professor Jones, something like this:

Under the United States Constitution, in order for the defendant to receive a fair trial, the government is required to inform the defense of any information known to the government that tends to suggest the defendant might not have committed the crime(s) charged as well as information that casts doubt on the credibility of the government's own evidence. In this case, the government intentionally withheld such evidence from the defense. Specifically, the government failed to inform the defense that [ ]. In evaluating the merits of this case, you can decide what weight, if any, to give to the government's misconduct. The government's actions, standing alone, or in combination with other facts presented in this case, may create a reasonable doubt in your mind about the defendant's guilt. This proposed instruction explains what is required under Brady and why disclosure is important (and not a mere "technicality"). This instruction also explains exactly what the government did wrong and appropriately allows the jury to decide the significance of the misconduct. While this instruction will not be outcome determinative in every case (nor should it be), the instruction will likely have a greater impact if the jury finds that the Brady evidence is central to the guilt/innocence determination. Conversely, the Brady instruction will have less impact if the jury believes the government, notwithstanding the Brady violation, has presented compelling evidence of guilt.

"Consciousness of a Weak Case" Inference

It is well established that when parties engage in certain behavior, the opposing party can present evidence of that behavior and argue that it supports the inference that the party was conscious that it had a weak case. As Professor Jones notes, however,

In criminal cases, the "consciousness of a weak case" inference is almost exclusively used by the government to show that the defendant has a "guilty mind" or as circumstantial evidence of consciousness of guilt. Evidence of a criminal defendant's consciousness of guilt has been so widely accepted that admissibility is regarded as "universally conceded." Such evidence generally falls into two categories. The first category includes actions taken by the defendant after the crime to elude capture, such as flight from the scene of the crime, escape from custody, alteration of physical appearance, use of an alias, and false exculpatory statements to the police. The second category of consciousness of guilt evidence involves various acts of evidence manipulation by the defendant that are closely analogous to actions that would constitute Brady misconduct, including the subornation of perjury, bribery or attempted bribery of witnesses, or the destruction or concealment of incriminating evidence.

Professor Jones argues that the same inference should apply when the prosecution commits Brady violations. As support, she cites to the recent opinion of the District of Columbia Court of Appeals in Shelton v. United States, 983 A.2d 363 (2009) (Download Shelton opinion), which she characterizes as "perhaps the first (and only) post-Brady case to apply the 'consciousness of a weak case' inference to intentional Brady misconduct." In the opinion, the court concluded that "defense counsel had a basis in law to argue that the government's nondisclosure of exculpatory information was akin to an admission by conduct that the government was conscious that its case was weak (and that it was in fact weak) and that appellant should have been allowed to present that evidence."

Professor Jones also contends that "In addition to the relevance of Brady misconduct evidence in support of a 'consciousness of a weak case' inference, Brady misconduct evidence has particular relevance in cases in which the defense either mounts a challenge to the government's criminal investigation or claims the prosecution is tainted by government misconduct or bias."

Conclusion

I find both of these proposals to be fascinating, and I think that they are viable ideas that courts should take a long look at adopting. Indeed, I made a similar argument that the prosecution's offer of a favorable plea bargain to a defendant (and the defendant's rejection of it) should be admissible by the defendant to support a "consciousness of a weak case" inference in an article earlier this year (seehere). But I think that Professor Jones' argument is even more compelling given the (mis)behavior connected with Brady violations.

Earlier, I asserted that the adoption of Professor Jones' proposals could be a real game changer in terms of how we think about Brady. Why? Well, the way I see it, the current Brady landscape is like the Fourth Amendment landscape before adoption of the exclusionary rule. Sure, Brady proscribes certain behavior, but there is no real incentive to comply because the current remedy is merely compliance. If a prosecutor currently has evidence that toes the line between "material" and "immaterial," it is easy to see the prosecutor sitting on the evidence rather than disclosing it. If either or both of Professor Jones' proposals are adopted, I think that decision calculus changes significantly.

I asked Professor Jones what led her to write the article, and she responded,

I am writing a second (related) Brady article this summer. I was originally motivated to write the article because of the close link between wrongful convictions and Brady violations. I had this idea about the punitive jury instruction as a sanction that then developed into the full article. It was purely fortuitous that the Shelton case was decided just as the article was going to print.